CORONAVIRUS BILL AND OTHER CHANGES TO THE CARE AND SUPPORT GUIDANCE
Schedule 11 of the Coronavirus Bill deals with the duties under the Care Act 2014. The Bill will come into force when the relevant Regulations are passed by the Secretary of State. There is no indication as to timescale.
Please note that Schedule 11 applies in relation to duties arising before the coming into force of the Bill as well as duties arising on or after that day. This means that this emergency legislation affects every service user (those already in receipt of social care services and new referrals).
Whilst the Bill is not law yet, local authorities should continue to carry out their functions in the normal way (as the duties under the Care Act still apply for now), but prioritising urgent and more risky cases as well as relying on the s19 Care Act 2014 powers to meet urgent needs.
These are the duties suspended by the Bill:
– s.9 duty to assess the individual’s needs; and accordingly section 11 of that Act (refusal of assessment) does not apply
– s.10 duty to assess a carer’s needs;
– s.13 duty to determine eligibility; none of the regulations made under that section will therefore apply
– s.17 duty to assess financial resources;
– ss.24-27 care planning duties;
– ss.37-38 duties relating to people moving areas; and
– ss.58-64 duties concerning children’s needs and their carers’ needs
Local Authorities do not need to comply with any duties in respect of preparing care and support plans, conducting care plan reviews, choice of accommodation and duty to prevent or mitigate loss or damage to property of adults being cared for away from home.
Broadly, the Bill states that Local Authorities must meet an adult’s needs for care and support if the adult is ordinarily resident in their area and they consider that it is necessary to meet those needs for the purpose of avoiding a breach of the adult’s Convention rights (Human Rights). The main rights are Article 2 (protect life) and Article 8 (Home and family life). In one of the leading cases, the Court accepted that the economic well-being of the State and the interests of the other care-users would justify interference with Article 8.
Article 8 states as follows:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
However, nothing in the Bill prevents a local authority from carrying out any assessment, or making any determination, it considers appropriate for the purposes of exercising its functions under the Care Act to meet needs.
It is our view that although the Bill suspends the duty to carry out care needs assessments, local authorities should act reasonably and if there are resources available and the assessment can be carried out, or the reason for not assessing has ceased, the local authority should consider assessing.
S14 and 17 Care Act 2014
The duty of financially assessing adult is suspended. However, Local authorities may not charge for meeting needs where the financial assessment is not done. Local authorities, however, are not prevented by the decision to meet needs without financial assessment during the emergency period from subsequently carrying out an assessment under section 17 (whether during or after the emergency period) and deciding to make a charge for meeting those needs during that period.
In these times of uncertainty there are likely to be a number of questions surrounding the new Coronavirus Bill and how this affects the current Care Act and Care and Support Statutory Guidance. If you do have any questions, please do not hesitate to contact ELS.
OTHER CHANGES TO THE CARE AND SUPPORT GUIDANCE – 2 MARCH 2020
The changes summarised below took effect on 2 March and are not affected by the Coronavirus Bill.
More changes have been made to the Care and Support Statutory Guidance as of 2 March 2020. Most of the changes made are purely for clarification and to provide further guidance which will be of most use to all of those carrying out carers’ assessments and financial assessments.
The main changes are set out below:
Chapter 2 Preventing, reducing or delaying needs
Amendment to numbers of paragraphs for accuracy, and a minor amendment to paragraph 2.60 to make it clearer. This paragraph refers to the fact that intermediate care and reablement must be provided free of charge for up to 6 weeks, along with aids and minor adaptations.
Chapter 6 Assessment and Eligibility
The major change is in respect of carers. Paragraph 6.123 is now drafted to give guidance about what the Local Authority should consider when completing a Carer’s assessment and provides some examples such as:
carrying out any caring responsibilities the carer has for a child - Local authorities should consider any parenting or other caring responsibilities the carer has for a child in addition to their caring role for the adult. For example, the carer might be a grandparent with caring responsibilities for their grandchildren while the grandchildren’s parents are at work.
engaging in work, training, education or volunteering - Local authorities should consider whether the carer can continue in their job, and contribute to society, apply themselves in education, volunteer to support civil society or have the opportunity to get a job, if they are not in employment.
Chapter 8: Charging and financial assessment
The Constant attendance allowance payments which can be an aspect of the War pension scheme payments to veterans, has now been specifically defined as income which can be included in the financial assessment.
Paragraph 8.34 has more robustly defined the circumstances in which a local authority can choose to charge a temporary or short-term resident under its domiciliary charging policy. This includes:
Where a person is a short-term resident (i.e. placed in a care home for less than 8 weeks) a local authority may choose to assess and charge them based on the rules for care or support arranged other than in a care home.
- Certain housing-related costs will be disregarded in financial assessments for a temporary resident (someone whose stay in a care home is unlikely to exceed 52 weeks or, in exceptional circumstances, is unlikely to substantially exceed 52 weeks).
Chapter 9 Deferred Payment Agreements
A paragraph has been amended for accuracy to reflect the interest position contained in the Care and Support (Direct Payment) Regulations 2014. Previously the guidance stated that the maximum interest rate was tied to the market gilts rate published in a report by the Office of Budget Responsibility. The statutory guidance has now been changed to add the default component of 0.15%.
Chapter 19: Ordinary Residence
An increased explanation on the Supreme Court case Cornwall, which affects adults who lack capacity to decide where they live and children transitioning to adult’s services. (paras 19.17-19.22).
There is now a more thorough explanation of the process for adults who lack capacity to decide where they wish to live. (paras 19.23-19.36).
There is now a more thorough explanation about children transitioning to adult’s services, including case studies. (paras 19.37-19.42)
The section about referring disputes to the Secretary of State has now been amended, with the changes seemingly being for clarity rather than amending the process.
Annex B: Treatment of Capital and Annex C: Treatment of Income
The following have now been listed as payments which must be disregarded as both capital and income;
Scottish Infected Blood Support Scheme
London Emergencies Trust
We Love Manchester Emergency Fund
Jennifer Mellani | Health and Social Care Specialist – Legal Service Manager
T: 03330 133 277
Stacey Knowles | Legal Executive
T: 03330 139 630